Jammu & Kashmir High Court
Bajaj Allianz General Insurance ... vs Sadhu Ram And Others on 23 July, 2020
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 202
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
APCIV No.133/2017
MA No.365/2017 IA No.1/2017
Bajaj Allianz General Insurance Company Limited ...Appellant(s)
Through:- Mr. Vishnu Gupta, Advocate
V/s
Sadhu Ram and others ...Respondent(s)
Through:- Mr. Narinder Kumar Attri, Advocate for
R-1.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
APCIV No. 133/2017 No orders are required to be passed in this application at this stage because the appeal is being considered for final disposal.
Accordingly, this application is disposed of. MA No.365/2017
1. This appeal by the Bajaj Allianz General Insurance Company Limited (hereinafter 'the insurer') is directed against the award dated 10 th January, 2017 passed by the Motor Accident Claims Tribunal, Ramban (hereinafter 'the Tribunal') in Claim No.147/Claim titled, Sadhu Ram v. Bajaj Allianz General Insurance Company Limited and others, whereby respondent No.1 (hereinafter 'the claimant') has been held entitled to compensation of ₹ 2,65,000/- on account of death of Vijay Singh, son of the claimant.
2. The impugned award has been assailed by the insurer primarily on two grounds:-
i) The offending vehicle, at the time of accident was overloaded and, therefore, the appellant-insurer was only liable to satisfy the highest 23 passengers and was absolved of its liability to 2 MA No.365/2017 indemnify the owner with regard to the death or bodily injury to rest of the passengers.
ii) The quantum of compensation assessed by the Tribunal is contrary to the evidence on record and, therefore, is exorbitant and excessive.
3. Heard learned counsel for the appellant and respondent No.1 and perused the record.
4. With regard to the issue of overloading of the offending vehicle, it is contended that as per the Registration Certificate (RC) of the offending vehicle, it had permissible carrying capacity of 23 passengers but the same was overloaded with passengers more than 23 in number. It is, thus, urged that for violation of the RC as also the terms and conditions of the Insurance Policy, the appellant-insurer was absolved of its liability. It is, however, not the case of the appellant that the injured or deaths in the instant case, with respect to whom the claim petitions were filed are more than 23 in numbers.
5. If that be the position, this issue would not arise for consideration. It is exactly for this reason, the Tribunal has not framed any issue with regard to overloading. Otherwise also, issue with regard to the overloading of the offending vehicle and the liability of the insurer has been fairly settled by the Supreme Court in the case of United India Insurance Company Limited v. K.M.Poonam, 2011 ACJ 917 SC. It is, thus, trite law that even if, passenger vehicle is overloaded, the Insurance Company is not totally absolved of its liability to indemnify the owner but its liability would be restricted to satisfy the highest awards qua the passengers within the permissible seating capacity of the vehicle and for rest of the passengers also the Insurance Company would pay the compensation in the first instance and shall have the recovery rights against the owner. 3 MA No.365/2017
6. As noted above, in the instant case, the issue is totally insignificance, as in the instant case, the claim petitions with respect to both the injured/deceased are far less than 23, which, as per the insurer, was the registered seating capacity of the offending vehicle.
7. Regarding quantum of compensation, Mr. Vishnu Gupta, learned counsel for the appellant, vehemently urges that in the absence of cogent evidence on record, the Tribunal was not justified in not applying any deduction to the notional income .
8. From a perusal of the record, it clearly transpires that the deceased, Vijay Singh, was a 10 years old studying in 4th standard at the time of death. Had he been alive, the deceased would have certainly contributed substantially to the family of the claimant. Under the Second Schedule of the Motor Vehicle Act, 1988, in case of a non-earning persons, notional income of ₹15,000/- per annum was prescribed in the year 1994. The Supreme Court in the case of Krishan Gopal and another v. Lala and others, (2014) 1 SCC 244, after taking note of the fact that the rupees value has come down drastically from the year, 1994, when the notional income was fixed at ₹ 15,000/-, took the notional income of a child of 10 years old at Rs.30,000/- per annum. Therefore, applying the ratio of Krishan Gopal (supra), it would be in the fitness of things to take the notional income of the deceased at ₹ 30,000/ per annum. The Tribunal has correctly applied the multiplier of 15.
09. It may be noted that applying the well settled legal standards, the amount of compensation instead of getting decreased, would increase. Court is conscious that the claimant has not filed any cross-appeal/objection for enhancement, yet it is obligatory on the part of the Courts/Tribunals to ensure that the compensation awarded is just and reasonable. (see Jitendra 4 MA No.365/2017 Khimshankar Trivedi and ors. V. Kasam Daud Khumbhar & ors, (2015) 4 SCC 237)
10. Accordingly, taking the notional income of the deceased as ₹30,000/- and applying the multiplier of 15, the total loss of income would come to ₹ 4,50,000/-.
11. Apart from the aforesaid loss of income, respondent No.1 would also be entitled to following sums under conventional heads viz. loss of estate ₹ 15,000/-, funeral expenses ₹ 15,000/- and loss of filial consortium ₹ 40,000/-.
12. Accordingly, the claimant is held entitled to the compensation in the following manner:-
Loss of income : ₹ 4,50,000.00
Loss of Estate : ₹ 15,000.00
Funeral expenses : ₹ 15,000.00
Loss of filial consortium : ₹ 40,000.00
Total : ₹ 5,20,000.00
13. Regarding interest and other terms and conditions, the award of the Tribunal shall remain unaltered. The award of the tribunal is modified to the aforesaid extent.
14. The appeal along with connected application stands disposed of. The appellant shall deposit the balance amount within six weeks. On such deposit, the Registry shall release the amount in favour of the claimant after proper identification and verification.
(Sanjeev Kumar) Judge JAMMU 23.07.2020 Vinod.
Whether the order is speaking: Yes/No Whether the order is reportable:Yes/No VINOD KUMAR 2020.07.30 17:45 I attest to the accuracy and integrity of this document